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Case Note - Unilateral Arbitration Clauses: When a One-sided Consensus is Actually a Consensus Wilson Taylor Asia Pacific Pte Ltd v Dyna-Jet Pte Ltd [2017] 2 SLR 362

Journal article | September 2020 | Available for purchase & free for members

Abstract

One of the cornerstones of arbitration is consensus. Parties must agree to arbitrate. But if the agreement to arbitrate provides only one party with an exclusive right to choose between litigation and arbitration, does that constitute consensus? In Commonwealth and many common law countries, the answer, apparently, is yes. Wilson v Dyna-Jet is the most recent authority that upholds the validity of unilateral arbitration clauses or UACs. It is the initial agreement to arbitrate that establishes consensus and the characteristic of optionality is not inconsistent with the consensual nature of an arbitration agreement. When discussing the validity of UACs, the focus is often on mutuality and/or optionality. Of particular interest in this case is whether a dispute can still fall within the scope of the arbitration agreement once the option for litigation has been exercised.

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Thanks

We thank the author of this Albert Donna Ross and the journal editor Russell Thirgood for their contribution to this journal.

Tags: Dispute resolution, Arbitration Award, Security, Arbitration, Unilateral Arbitration clause